[embedded content]
As the US prepared for a Joe Biden or a Donald Trump victory, Americans were forced to consider an extraordinary scenario in which Trump loses, but refuses to concede.
The president has suggested he may not accept the results of the 2020 election enough times to prompt alarm over whether he may actually be serious.
Over the past six months Trump has repeatedly refused to commit to a peaceful transition of power, when asked, and has claimed he will only lose if the election is rigged.
Trump displayed the same non-commitment in 2016, but this year an expectation of delays in the result gives the president more scope to claim election results can’t be trusted, or even to claim victory before enough votes are counted.
Back in July, Trump seemed to be laying the ground for potentially repudiating the vote. In an interview with Chris Wallace on Fox News, largely remembered for Wallace confronting Trump with the “very hard” cognitive test the president claimed to have taken – the test required the sitter to identify an elephant, an alligator and a snake – Wallace asked Trump if he would accept the election results.
“I have to see,” Trump said. “Look – I have to see. No, I’m not going to just say yes. I’m not going to say no.”
On other occasions he was happy to bring up the question himself.
“The only way we’re going to lose this election is if the election is rigged,” Trump told the crowd at a rally in Oshkosh, Wisconsin, in August. “Remember that. That’s the only way we’re going to lose this election.”
The president repeated the message in a rare White House news conference in September, and during the first presidential debate a week later.
But how real is the threat of Trump refusing to accept the results?
Well, the circumstances of hosting an election in the midst of a pandemic make it more of a possibility than in a normal election.
The changes to voting habits have made it easier for Trump to level baseless accusations of fraud, and even create a scenario where he could prematurely declare himself the winner.
Record numbers of Americans have voted early, with a significant proportion doing so by mail. The increased number of mail-in ballots, in particular, could mean it takes polling workers longer to count – and announce – the results.
As some election experts have pointed out, the US could find itself in an election week, not night. If Trump finds himself in the lead early in some states, there is a chance he could declare himself the victor, before enough votes have been counted to be certain who has won.
The likelihood of the president finding himself in an early lead is exacerbated by the trend for Democrat votes to come in later, as votes from urban areas, which tend to be more Democratic-minded, take longer to count than those from more Republican areas. An academic study has shown how “overtime votes” – votes counted in the days after an election – have in the last 20 years shifted in favour of the Democratic candidate.
overtime votes
In the Florida elections for Senate and governor in 2018, both Republican candidates’ early leads shrank in the days after the vote, as mail-in ballots were counted. As Trump watched the Democratic candidates narrow the gap, he attempted to intervene.
“The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged,” Trump tweeted.
“An honest vote count is no longer possible – ballots massively infected. Must go with Election Night!”
Exploiting confusion
The potential for confusion, which Trump could potentially exploit, is exacerbated by laws that prevent early processing of ballots. Some key swing states – including Pennsylvania and Wisconsin – are only allowed to begin opening and counting mail-in ballots on election day.
Doing so as officials also hold an in-person election could lead to a delay in announcing results – opening the window further for a candidate to potentially, and wrongly, claim an early victory.
Away from vote counting, Trump’s rhetoric around voting fraud could also confuse matters. The president has urged his supporters to go to the polls, and in September a group of Trump backers supporters intimidated early voters at a polling location in Fairfax, Virginia.
There is also the threat of legal action against states, as lawyers could attempt to rule ballots, particularly mail-in ballots, illegitimate.
Post-election litigation is normal in the US, and includes issues such as allowing a poll site to remain open for two extra hours because its machines broke down in the afternoon.
Franita Tolson, a University of Southern California law professor, said these mistakes are more dangerous because of the president’s rhetoric about fraud.
“We will be in a particularly vulnerable spot because the president has spent months and days talking about how the system is rife with voter fraud and it’s rigged and it’s illegitimate and all these other things,” Tolson said.
“It’s hard to not confuse election mistakes with deliberate election irregularities.”
Some experts, however, believe Trump’s rhetoric has encouraged early voting and that chances have actually risen that a clear result will emerge, if not on election night, then in the following days.
And if there is a clear result, Trump’s chances of plausibly “stealing the election” – using the confusion of the pandemic as cover – vastly diminish.
It has also been pointed out that, if lawsuits drag on past 20 January, preventing a victor from being declared, neither Trump nor Biden would be sworn in as president. In that scenario, the law is pretty clear:
“If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.”
That would mean Nancy Pelosi, as speaker of the House, would assume the presidency – presumably not an eventuality Trump has in mind.
The barricade scenario
In the unlikely event that Trump, still refusing to accept his loss despite Biden having been ruled the victor, barricades himself inside the White House and physically will not leave office, it’s not immediately clear who would be in charge of removing him.
Biden, back in June, said the military would remove the by-now-former president. He told the Daily Show: “I promise you, I’m absolutely convinced they will escort him from the White House with great dispatch.”
The military seems to have other ideas, however.
Gen Mark Milley, the chairman of the joint chief of staffs and the country’s top military officer, has said service members would not get involved in the transfer of power. “In the event of a dispute over some aspect of the elections, by law US courts and the US Congress are required to resolve any disputes, not the US Military,” Milley said. “We will not turn our backs on the constitution of the United States.”
Clearly Trump would be removed somehow – at some point he surely would have to leave of his own accord – but Americans will be hoping this hypothetical does not come to pass.
As Trump likes to say: “We’ll see what happens.”
With additional reporting by Amanda Holpuch More
